Epstein on Libertarian Opposition to NSA Surveillance

Libertarians of La Mancha

Mario Loyola & Richard A. Epstein

The Weekly Standard

July 8, 2013

The political tables have turned almost 180 degrees. President Obama uneasily defends surveillance programs of the National Security Agency, while his liberal and libertarian opponents accuse him of lawlessly abusing his powers. The spectacle might even be entertaining, were it not for its worrisome implications. Republicans, the most reliable constituency for the surveillance policies that have protected the nation since September 11, are starting to walk away from them.

Senator Rand Paul recently crowed that Edward Snowden, the NSA leaker now on the lam, will go down as “an advocate of privacy.” His father, former GOP congressman Ron Paul, declared that “we should be thankful” for the “great service” Snowden did in “exposing the truth about what our government is doing in secret.” Rank-and-file Republicans in the House have filed a bill to further stifle NSA surveillance, and Tea Party favorite Mike Lee is leading a similar effort in the Senate. At the libertarian Cato Institute (where Epstein is an adjunct scholar), privacy champions have assailed the “authoritarian measures that are advanced by the military, intelligence, and law enforcement agencies.” These voices could inadvertently weaken support for national security programs to a dangerous degree.

What a difference five years makes. When, in 2008, a Democratic Congress voted to enshrine President George W. Bush’s Terrorist Surveillance Program in the FISA Reform Act of 2008, virtually all opposition came from the left. Senator Jay Rockefeller, the bill’s principal drafter, bent over backwards to accommodate the objections of liberal Democrats such as Russ Feingold, Chris Dodd, and Ron Wyden. Yet with every revision, liberal senators pressed ever-more unreasonable objections, until it became obvious to Rockefeller that no matter how many civil liberties safeguards the law contained, die-hard liberals would oppose it.